December 20, 2004

Where Do We Go From Here?

The future of copyright is no big mystery.In fact, it is quite clear, and can be easily summed up with four simple words: uncertain and very problematic. With obvious sarcasm aside, the question of copyright’s future is a very troubling one; one that has been known to frustrate many an individual and, in some instances, create dispositions bordering on insanity.Nonetheless, in this post I will attempt to summarize where I believe the future of copyright can and should be heading, focusing particularly on the music industry’s conflict with peer-to-peer file sharing, which appears, for now, to be the most troubling issue affecting copyright.

To understand where the future of copyright is heading, one first needs to have an understanding of where it has been.The framers of the Constitution intended for copyright to be used as a means to “promote the progress of science and the useful arts.”The intention was to create an incentive for individuals to pursue endeavors in these fields, by offering the creators of such works exclusive rights to copy and distribute their creations (copyrights).However, the music industry has since come to revolve around large companies known as record labels, to which the original creators of such works assign these copyrights.These entities, with their corporate muscle and global reach, represent an ability to exploit the power of copyright in a way the framers probably could not have imagined.As a result, the evolution of these entities created an industry where finding enough incentive for individuals to create music was certainly not a problem.For a long time, life was very good for content creators (artists) and providers (labels), and if there was any problem at all, it was perhaps that the incentive to pursue this creative practice had become too great. Consumers found that they were being held somewhat at ransom, while the music industry was making a fortune off of content that was often criticized for both its quality and its price.

That is, until a young man by the name of Shawn Fanning created Napster, introducing the world to the phenomenon known as peer-to-peer file sharing (P2P), and forever changing the face of copyright and the entertainment industry.P2P, which was made possible by the development of the internet and digital technology, allows individual users to copy and (essentially) distribute copyrighted material without obtaining any authorization from the rightful copyright owners.Although Fanning’s original creation of Napster has since been shut down, it opened the door for the development of many new P2P services, which have thus far managed to avoid the long-arm of the law.Currently, there are over 6 million P2P users in the United States alone, meaning there are a lot of people who the music industry has lost the ability to sell music to.

The music industry is, understandably, not too happy about this, and has spent the last several years employing various attacks, aimed at different opponents, in an attempt to counter the effects of P2P.They have filed thousands of copy infringement suits against both individual P2P users and the distributors of P2P software, but neither has proved very effective at slowing down P2P.Although the suits against individual users have almost all ended in the industry’s favor, the costs of bringing these suits have simply proved too large to allow the industry to make any kind of significant dent in the pool of 6 million users (think of these suits as the equivalent of taking a bucket of water out of the ocean).On the other hand, the problem with bringing suits against the P2P distributors is that such cases have not all resulted in the music industry’s favor.Although the industry did experience some early success with cases such as Napster, more recent decisions, such as Grokster, have failed to hold the distributors liable as contributory infringers.Furthermore, attempts at finding legislative solutions to the problem have also proved unsuccessful, due largely to Congress’ reluctance to disregard the technology industry and the music industry’s reluctance to compromise their broad proposals.

However, there are many who argue that even if new legislation were passed, or if the Grokster decision was overturned, the P2P problem would still not go away.This argument rests on two basic ideas: [1] the “horse is out of the barn,” meaning that the software is already in the hands of users, out of the control of the distributors, and thus beyond the reach of any reasonable means of regulation; [2] the internet, itself, is essentially one large P2P service, so P2P will always occur as long as the internet exists.

If you accept either of the two arguments in the last paragraph, or simply that the music industry can’t stop P2P for the reasons given in the paragraph before the last, then you begin to understand why so many music industry people are feeling, well, let’s say insecure.Under the current structure, P2P represents the ability to completely wipe out the music industry as we know it.If the phenomenon is not stopped, it is not too hard to imagine a time when no one will be willing to pay for music, a situation which would return copyright to its initial position of needing to create some incentive for individuals to pursue the practice of creating music.

Thus, many have suggested that since stopping P2P is not an option, the only available choice the music industry has is to develop some alternative system that embraces and accepts the role of P2P.Of these alternative models, two of the most prominent are the “creative commons” and “musical socialism”.However, neither of these alternative systems appear practical to me, for reasons which I cannot discuss in great detail here.However, I will say that the bottom line appears to be that in order to implement any new system, its benefits would have to outweigh the costs of maintaining the current system, by a substantially great amount.This is because many years and many livelihoods have been invested in developing the system we currently have, and to overturn it would be an extremely costly endeavor.In order to undertake such a task, the alternative system would have to offer seemingly no drawbacks and the current system would have to be utterly desperate for reform.To this point, neither the proposed systems nor the current system fulfill these requirements, and thus, it appears that implementing a drastically new system for copyright in the music industry is not a practical alternative.

So, does this mean that copyright and the music industry are inevitably doomed by P2P?Well, it may, but personally, I’m not ready to concede that just yet.The main reason why is because I don’t necessarily agree with the arguments painting P2P as an inevitable force that cannot be stopped or controlled.

First of all, I believe that distribution of P2P services can be halted, either by legislation or by an overturning of the Grokster decision.If the music industry could compromise their aspirations and propose legislation that simply required P2P services to implement a central control mechanism that checked for authorization of transferred files, I believe that the technology industry would have no justifiable reason to object and Congress would be willing to pass it. Alternatively, this same result could be achieved through an overturning of Grokster, if the Supreme Court chose 1 of 2 routes: [1] The court could apply the “substantial non-infringing use” defense established by the Betamax decision, but hold that the non-infringing use that P2P is capable of is not “substantial”; [2] The court could reject that approach, finding that P2P is a problem involving sharing (and not just copying), and create a new standard for sharing which would require central control mechanisms.

Secondly, assuming that P2P distribution could be halted by one of the means above, I am not ready to accept either the “horse out of the barn” argument or the “internet as P2P” argument as justifications for failing to do so.Although users would still have the P2P software on their computers, it seems to me that there would still be ways to curtail its use.One option would be to involve ISPs in the attempt to police use of unauthorized P2P services; a plan that would possibly involve shifting the costs of such efforts from the ISPs to the content providers.In addition, the simple fact that these services would no longer be monitored and updated by their distributors would ultimately lead to their ineffectiveness.Also, I believe that the power to create is ultimately the power to destroy, meaning that since we were able to design these P2P networks, I am not willing to concede that we cannot develop a way to control and destroy them, if given the authority to attempt to do so.And finally, the argument that the internet is P2P, so P2P will always resurface, does not justify, to me, the stance that we should not attempt to fight P2P in the form in which it currently exists.Although the “internet is P2P” argument certainly may hold some validity, it does not justify turning a blind eye to the current problem, out of fear that the immediate solution might someday be undone by the surfacing of a similar problem in a new form.Until a viable alternative to the current structure of copyright in the entertainment industry arises, we have a duty to those who have invested their livelihood in the industry and to the integrity of our legal system, to enforce the laws, as they exist, to the maximum of our capability.This requires us to fight the illegalities of P2P.

Finally, I will conclude by saying that if my opinion does not win out, and P2P does prove unbeatable (or we simply decide not to try), the music industry will not certainly be doomed.Although the music industry’s coexistence with P2P seems less than promising, it is may not be inevitable that P2P ultimately equals death to music.For example, it may be possible that P2P can simply cut the fat off of a formerly inefficient industry, causing entities, such as the record label, which were once needed but are now less imperative, to become extinct, and placing the focus of copyright on the original creators, as the framers had intended.It also may be possible for some sort of vertical integration to take place among the P2P distributors, the ISPs, and the content providers, by which all three could coexist.However, I do not believe that the existence of these possibilities justifies a failure to enact our laws to the maximum of our capability, as long as they are the controlling laws on the books.

P2P may prove to be a force that will ultimately cause the music industry and copyright to fundamentally restructure their make-up.However, that is not yet where we are at today, and until we are, we have a duty to fight P2P by all means reasonably necessary.